# Meghraj Sharma Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2021) 7 ILRA 235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** Criminal Revision No. 3449 of 2019
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/meghraj-sharma-revisionist-in-jail-v-state-of-u-p-anr-47081
- **Pages:** 17

## Headnote

(A) Criminal Law -Indian Penal Code, 1860
- Sections 302, 201, 364A - The Juvenile
Justice (Care And Protection Of Children)
Act, 2000 - Section 7A - Claim of juvenility
- Procedure to be followed when claim of
juvenility is raised before any court - The
236 INDIAN LAW REPORTS ALLAHABAD SERIES
Juvenile Justice (Care & Protection of
Children)
Rules
2007-
Uttar
Pradesh
Juvenile Justice (Care and Protection of
Children) Rules, 2004 - proceedings
prescribed in 2007 Rules have to be
followed strictly and only in the absence
of the document specified in rule 12 (3)(a)
can recourse be taken to the other
methods
prescribed
-
Question
of
juvenility is to be determined on the date
of the incident -(Para - 8,33)

Revisionist claiming to be a juvenile on the basis
of his High School Certificate - indicating his
date of birth as 21.4.1996 - application before
Special Chief Judicial Magistrate - declared
juvenile - Criminal Appeal dismissed - Criminal
Revision - Special Chief Judicial Magistrate no
jurisdiction to decide claim of juvenility - matter
remanded back - question of juvenility by the
Juvenile Justice Board - Board disbelieving the
High School Certificate and placing reliance on
the medical report, held that the revisionist was
not a juvenile on the date of the incident -
determined juvenility on the basis of procedure
prescribed under the Rules framed by the State
Government in 2004. (Para - 5,6)

HELD:-
Board
has
committed
error
in
determining the Juvenile claim by taking
recourse to Rules of 2004 and has erred in not
placing reliance on the High School Certificate,
which is on record. Even otherwise also, the
reasoning given by the Board in rejecting the
claim of juvenility is wholly arbitrary. Revisionist
is declared juvenile on the date of the
commission of the alleged offence in view of his
age being 21.4.1996 as indicated in the High
School Certificate.(Para - 45,46)

Criminal Revision allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,888 of 54,919. This is a partial read: ask again with offset=39888 for what follows._

7 All. Meghraj Sharma Vs. State of U.P. & Anr.
235

15. The section empowers the court to
make orders for interim custody for disposal
of the property produced before it during an
inquiry or trial. This order may be passed in
respect of both (i) property produced before
the court during the inquiry or trial, and (ii)
property regarding which the offence appears
to have been committed or which appears to
have been used for commission of any
offence.

16. In the facts of the present case, the
case was pending at the stage of the
investigation and the stage of trial had not yet
reached.

17. The case is registered under the
provisions of Public Gambling Act, 1867,
and in terms of the scheme of the Act, the
Magistrate or the Officer authorised is
empowered to search, seize and take
possession all instruments of gaming, and of
moneys and security of money and articles of
value, reasonably suspected to have been
used or intended to have been used for the
purpose of gaming which are found therein.

18. The power of the court under
Section 451 of the Code for passing of an
order for custody and disposal of property
can be invoked, only during the course of an
inquiry or at the stage of trial. The
proceedings relating to investigation are not
within the realm of either inquiry or trial and
therefore the powers of the court under
Section 451 cannot be invoked at the stage of
investigation.

19. The court below has thus rightly
held that since investigation was pending no
order for custody or disposal of property
could be passed in exercise of powers under
Section 451 of the Code.

20. Counsel for the revisionist has
not been able to dispute the aforesaid factual
and legal position. He, however, submits that
the revisionist may have liberty of invoking
the jurisdiction of the court for release of
property at the appropriate stage during the
course of the trial.

21. No material error or illegality
having been pointed out in the order passed
by the court below, the revision stands
dismissed.

22. However, this would not preclude
the revisionist from invoking the jurisdiction
of the court for an order for custody or
disposal of the property at the appropriate
stage.
----------
(2021)07ILR A235
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Criminal Revision No. 3449 of 2019

Meghraj Sharma ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sikandar B. Kochar

Counsel for the Opposite Parties:
A.G.A., Sri Sharique Ahmed

(A) Criminal Law -Indian Penal Code, 1860
- Sections 302, 201, 364A - The Juvenile
Justice (Care And Protection Of Children)
Act, 2000 - Section 7A - Claim of juvenility
- Procedure to be followed when claim of
juvenility is raised before any court - The
236 INDIAN LAW REPORTS ALLAHABAD SERIES
Juvenile Justice (Care & Protection of
Children)
Rules
2007-
Uttar
Pradesh
Juvenile Justice (Care and Protection of
Children) Rules, 2004 - proceedings
prescribed in 2007 Rules have to be
followed strictly and only in the absence
of the document specified in rule 12 (3)(a)
can recourse be taken to the other
methods
prescribed
-
Question
of
juvenility is to be determined on the date
of the incident -(Para - 8,33)

Revisionist claiming to be a juvenile on the basis
of his High School Certificate - indicating his
date of birth as 21.4.1996 - application before
Special Chief Judicial Magistrate - declared
juvenile - Criminal Appeal dismissed - Criminal
Revision - Special Chief Judicial Magistrate no
jurisdiction to decide claim of juvenility - matter
remanded back - question of juvenility by the
Juvenile Justice Board - Board disbelieving the
High School Certificate and placing reliance on
the medical report, held that the revisionist was
not a juvenile on the date of the incident -
determined juvenility on the basis of procedure
prescribed under the Rules framed by the State
Government in 2004. (Para - 5,6)

HELD:-
Board
has
committed
error
in
determining the Juvenile claim by taking
recourse to Rules of 2004 and has erred in not
placing reliance on the High School Certificate,
which is on record. Even otherwise also, the
reasoning given by the Board in rejecting the
claim of juvenility is wholly arbitrary. Revisionist
is declared juvenile on the date of the
commission of the alleged offence in view of his
age being 21.4.1996 as indicated in the High
School Certificate.(Para - 45,46)

Criminal Revision allowed. (E-6)

List of Cases cited:

1. Jai Prakash Tiwari Vs St. of U.P. & anr., 2016,
97 ACC 592

2. Parag Bhati (juvenile) Vs St. of U.P., 2007
SCC (Crl.) 819, 2013 SCC online All

3. Abuzar Hossain @ Gulam Hossain Vs St. of
West, (2012) 10 SCC 489, 2013 1 SCC (Cri.) 83

4. Jai Prakash Tiwari Vs St. of U.P. and anr.,
2016 (97) ACC 592

5. Jai Prakash Tiwari Vs St. of U.P., 2016 (97)
ACC 592

6. Ashwani Kumar Saxena Vs St. of M.P., 2013
SCC (Cri), 2012 9 SCC 570

7.
Parag
Bhati (Juvenile) Through
Legal
Guardian Mother Rajni Bhati Vs St. of U.P. &
anr., (2016) 12 SCC 744

8. Abuzar Hossain @ Gulam Hossain Vs St. of
West, (2012) 10 SCC 489

9. Om Prakash Vs St. of Raj., 2012 (77) ACC
654 (SC)

10. Brijesh Kumar Vs St. of U.P., Criminal
Revision No. 64 of 2018

11. M.C. Gupta Vs C.B.I., (2012) 8 SCC 669

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Sikandar B. Kochar,
counsel for the revisionist, Sri Sharique
Ahmad, counsel appearing on behalf of the
Opposite Party No. 2 as well as Sri Manoj
Kumar Dwivedi, learned AGA appearing
on behalf of the State and perused the
record.

2. The present revision has been filed
challenging the order dated 16.11.2018
passed by the Juvenile Justice Board,
Kanpur Nagar in Misc. Case No. 6500036
of 2014 (State Vs. Meghraj Sharma and
others) arising out of Case Crime No. 213
of 2013, under Sections 302, 201, 364A
IPC,
Police
Station
Swaroop
Nagar,
District Kanpur Nagar, whereby the claim
of juvenility pleaded by the revisionist was
rejected by the Court ,as well as the order
dated 4.7.2019 passed by the Special Judge
(POCSO Act)/Additional Sessions Judge,
Court No. 7, Kanpur Nagar in Criminal
7 All. Meghraj Sharma Vs. State of U.P. & Anr.
237
Appeal No. 224 of 2018 (Meghraj Sharma
Vs. State of U.P.),whereby the appeal filed
against the order dated 16.11.2018 was
dismissed.

Facts in brief:

3. Facts which are the genesis of the
present dispute are that an FIR dated
23.12.2013 was registered as Case Crime
No. 213 of 2013 against some unknown
persons initially under Section 363 IPC
which was subsequently converted into
Section 364A, 302, 201 IPC, Police Station
Swaroop Nagar, District Kanpur Nagar.

4. In the said FIR, the date of incident
alleged was 22.12.2013. The investigations
were carried out and a chargesheet dated
18.2.2014 was filed against the revisionist
and the co-accused persons.

5. The revisionist claiming to be a
juvenile on the basis of his High School
Certificate indicating his date of birth as
21.4.1996, filed an application before
Special Chief Judicial Magistrate, Kanpur
Nagar, for being declared a juvenile. The
Special Chief Judicial Magistrate relying
on the High School Certificate declared the
revisionist a juvenile vide order dated
2.4.2014. The said order dated 2.4.2014
was challenged by means of a Criminal
Appeal No. 81 of 2014. The appeal too was
dismissed vide order dated 14.9.2015 and
the order declaring the revisionist a
juvenile was upheld in appeal. Aggrieved
against the said order passed by the
appellate authority on 14.9.2015, a revision
was preferred before this Court being
Criminal Revision No. 3839 of 2015. This
Court heard the matter and finally held that
the Special Chief Judicial Magistrate did
not have jurisdiction to decide the claim
of juvenility and held that it was Juvenile
Justice Board, which was empowered to
decide the said question, as such, the
appellate order was set aside and the matter
was remanded for decision on the question
of juvenility by the Juvenile Justice Board.

6. The Juvenile Justice Board by
means of an order dated 16.11.2018,
disbelieving the High School Certificate
and placing reliance on the medical report,
held that the revisionist was not a juvenile
on the date of the incident. The Board
determined the juvenility on the basis of
procedure prescribed under the Rules
framed by the State Government in 2004 .

7. The said order dated 16.11.2018
was challenged by the revisionist by filing
Criminal Appeal No. 224 of 2018 before
the Special Judge (POCSO Act)/Additional
Sessions Judge, Court No. 7, Kanpur
Nagar. The said appeal too was dismissed
vide order dated 4.7.2019, thus the order of
Juvenile Justice Board dated 16.11.2018
holding the revisionist to be major was
upheld by the Appellate Court. The present
revision has been filed challenging both the
orders dated 16.11.2018 and order dated
4.7.2019.

8. Common ground between the
parties is that the date of incident
admittedly is 22.12.2013. It is well settled
that the question of juvenility is to be
determined on the date of the incident.

Submission of parties:

9. The submission of counsel for the
revisionist is that while determining the
juvenility, the Juvenile Justice Board has
238 INDIAN LAW REPORTS ALLAHABAD SERIES
erred in not relying upon the Birth
Certificate, which was available on record
indicating the date of birth of the revisionist
as 21.4.1996 and has erred in taking
recourse to medical examination as well as
other
evidence
while
coming
to
a
conclusion with regard to status of the
revisionist as juvenile. His submission is
that in terms of the provisions of the
Juvenile Justice (Care And Protection Of
Children) Act, 2000 (in short 'the Act
2000') the procedure for determining
juvenility is prescribed under Section 7A
which lays down the procedure to be
followed when the claim of juvenility is
raised before the Court. He argues that a
specific procedure has been prescribed in
Juvenile Justice (Care and Protection of
Children) Rules, 2007 (in short 'Rules
2007') for determining the juvenility. He
further relies upon Section 68 of the Act
2000 which confers power on the State
Government to make rules to carry out the
purpose of the Act 2000 subject to the rider
as prescribed under the proviso to Section
68 (1) of the Act 2000, which makes it
clear that where the Central Government
has framed model rules and the State
Government although empowered to make
rules has not framed the model rules as
framed by the Central Government would
prevail. He further argues that even in
terms of the Rules 2007, it is specifically
provided that the rules so framed by the
State Government should be in conformity
with the model rules framed by the Central
Government.
He
emphasises
that
determination of age on basis of Rules of
2004 was bad in law and contrary to the
mandate of Act and the settled law.

10. On the basis of the said
submission, counsel for the revisionist
argues that the Juvenile Justice Board as
well as Appellate Court has erred in
ignoring the mandate of the Act 2000 as
well as Rules 2007 and have taken recourse
to determine the age relying on medical
examination and other evidence which is
strictly prohibited. He further placed
reliance on the judgment of the Full Bench
of this Court in the Case of Jai Prakash
Tiwari Vs. State of U.P. & another, 2016,
97 ACC 592. On the basis of the said
submissions, he argues that the orders
passed are contrary to the Act, 2000 and
Rules, 2007 and the same deserves to be set
aside, the revision should be allowed and
the revisionist should be declared a juvenile
based upon the High School Certificate,
which is on record before this Court also.

11. Sri Sharique Ahmad, on the other
hand, argues that in the light of the
judgment in the case of Parag Bhati
(juvenile) Vs. State of Uttar Pradesh,
2007 SCC (Crl.) 819, 2013 SCC online
All, which places reliance on the earlier
judgment of Abuzar Hossain alias Gulam
Hossain Vs. State of West, (2012) 10 SCC
489, 2013 1 SCC (Cri.) 83, it is open
before the Juvenile Justice Board to resort
to procedure of conducting the medical
examination if the Juvenile Justice Board
has reasons to believe that the High School
Certificate casts a doubt of it being
obtained in a manner which is not
prescribed under law or is fraudulent. He
further argues that in terms of the material
before the Juvenile Justice Board, as
indicated in the impugned order, the
Juvenile Justice Board was right in coming
to
the
conclusion
that
matriculation
certificate as produced by the juvenile was
not worthy of reliance and no error can be
found with regard to steps taken by the
Juvenile Justice Board for determining the
age
of
the
juvenile
which,
on
determination, has been found to be above
18 years of age.
7 All. Meghraj Sharma Vs. State of U.P. & Anr.
239

12. Counsel for the Opposite Party
further argues that the first submission of
the revisionist that the determining process
should be taken in accordance with the
Rules 2007, does not merit acceptance as
rules of Uttar Pradesh Juvenile Justice
(Care and Protection of Children) Rules,
2004 (in short 'Rules 2004) and Rule 2007
of the Central Government, in sum and
substance, are same and no prejudice is
likely to be caused to the revisionist on
account of determination based upon the
Rules 2004.

13. Counsel for the revisionist, in
rejoinder, argues that initially also the
proceeding has travelled to this Court and
this
Court
had
entertained
Criminal
Revision No. 3839 of 2015 and finally vide
order dated 15.5.2018, the matter was
remanded
for
determination
of
the
juvenility.

14. Sri Manoj Kumar Dwivedi and Sri
O.P. Mishra, learned AGA appearing on
behalf of the State strongly defend the
orders and argue that the orders have been
passed in accordance with law.

Statutory Provisions

15.

Realizing
that
primary
responsibility for ensuring the needs of the
children is to be filled General Assembly of
the United Nations adopted a Convention
on the Rights of a Child on 20th November,
1989 and it was accepted that all the
nations would adhere to the standards set
therein.

16. In terms of the mandate of the
Constitution as laid down in Article 15 (3),
Clauses (e)(f) of Article 39, Article 45 and
Article 47. The Government of India
ratified the Convention on 11th December,
1992. Initially for ensuring the needs of the
children in conflict with law was governed
by the Juvenile Justice Act, 1986, however,
subsequently, the Government of India
having
ratified
the
United
Nations
Convention on Child Rights enacted the
''Act' known as The Juvenile Justice (Care
and Protection of Children) Act, 2000
(hereinafter referred to as the ''JJ Act
2000').

17. Section 7A of the said JJ Act 2000
provides for the procedure to be followed
when the claim of juvenility is raised
before any Court and is as under:

"[7A. Procedure to be followed
when claim of juvenility is raised before
any court.- (1) Whenever a claim of
juvenility is raised before any court or a
court is of the opinion that an accused
person was a juvenile on the date of
commission of the offence, the court shall
make an inquiry, take such evidence as
may be necessary (but not an affidavit) so
as to determine the age of such person,
and shall record a finding whether the
person is a juvenile or a child or not,
stating his age as nearly as may be:

Provided
that
a
claim
of
juvenility may be raised before any court
and it shall be recognised at any stage,
even after final disposal of the case, and
such claim shall be determined in terms of
the provisions contained in this Act and
the rules made thereunder, even if the
juvenile has ceased to be so on or before
the date of commencement of this Act.

2. If the court finds a person to
be a juvenile on the date of commission of
the offence under sub-section (1), it shall
240 INDIAN LAW REPORTS ALLAHABAD SERIES
forward the juvenile to the Board for
passing
appropriate
order,
and
the
sentence if any, passed by a court shall be
deemed to have no effect].

18. Section 68 of the JJ Act 2000
empoweres the State Government to make
rules to carry out the purposes of the Act.
Section 68 (1) of the JJ Act 2000 is being
quoted herein below as the same is relevant
for the purpose of adjudication:

68. Power to make rules.-- (1)
The
State
Government
may,
by
notification in the Official Gazette,
make rules to carry out the purposes of
this Act: 1[Provided that the Central
Government may, frame model rules in
respect of all or any of the matters
with
respect
to
which
the
State
Government may make rules under
this section, and where any such model
rules have been framed in respect of
any such matter, they shall apply to the
State until the rules in respect of that
matter
is
made
by
the
State
Government and while making any
such rules, so far as is practicable,
they conform to such model rules.]

19. In terms of the powers
conferred by virtue of Section 68 of the
JJ Act 2000, the State Government
framed rules known as The Uttar
Pradesh Juvenile Justice (Care and
Protection of Children) Rules, 2004
(hereinafter referred to as the ''Rules of
2004').
The
said
rules
specifically
provided for the manner of determining
the age of the juvenile. Rule 22 of the
said Rules of 2004 laid down the
procedure to be followed by a Court in
holding the inquiries. Rule 22 (5), which
is relevant for the present case is quoted
hereunder.

22. Procedure to be followed
by the Board in holding inquiries and
the determination of age.-

(5) In every case concerning a
juvenile or child, the Board shall
either obtain-

(i) a birth certificate given by
a
corporation
or
a
municipal
authority; or

(ii) a date of birth certificate
from the school first attended; or

(iii)
matriculation
or
equivalent certificates, if available;
and

(iv) in the absence of (i) to
(iii) above, the medical opinion by a
duly
constituted
Medical
Board,
subject to a margin of one year, in
deserving cases for the reasons to be
recorded by such Medical Board,
regarding his age, and, when passing
orders in such case shall, after taking
into' consideration such evidence as
may be available or the medical
opinion, as the case may be, record a
finding in respect of his age.

20. Subsequent thereto, the Central
Government also framed rules which
are known as The Juvenile Justice (Care
and Protection of Children) Rules, 2007
(hereinafter referred to as the ''Rules of
2007'). In the said Rule, Rule 12
specifically provided for the procedure
to be followed by the Board while
determining the age of the Juvenile.
Rule 12 (3) relevant for the present case
is as under:

"12 (3) In every case concerning
a child or juvenile in conflict with law, the
age
determination
inquiry
shall
be
conducted by the court or the Board or, as
the case may be, the Committee by seeking
evidence by obtaining
7 All. Meghraj Sharma Vs. State of U.P. & Anr.
241

(a) (i) the matriculation or
equivalent certificates, if available; and in
the absence whereof;

(ii) the date of birth certificate
from the school (other than a play school)
first attended; and in the absence
whereof;

(iii) the birth certificate given by
a corporation or a municipal authority or
a panchayat;

(b) and only in the absence of
either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from a
duly constituted Medical Board, which
will declare the age of the juvenile or
child. In case exact assessment of the age
cannot be done, the Court or the Board or,
as the case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the
child or juvenile by considering his/her
age on lower side within the margin of
one year.

and, while passing orders in
such
case
shall,
after
taking
into
consideration such evidence as may be
available, or the medical opinion, as the
case may be, record a finding in respect of
his age and either of the evidence
specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b)
shall be the conclusive proof of the age as
regards such child or the juvenile in
conflict with law."

21. Subsequently, the Act itself has
been amended by the Juvenile Justice (Care
and Protection of Children) Act, 2015 and
The Juvenile Justice (Care and Protection
of Children) Model Rules, 2016.

22. In the present case, as the date of
incident admittedly is 22.12.2013, the Act
of 2015 and the Model Rules of 2016
would not apply and the determination is to
be done on the basis of law as existed on
the date of the incident i.e. on 22.12.2013.

23. Thus, on the basis of the
submissions as made and on the basis of
the statutory provisions that existed on the
date of the incident what has to be
determined is

(a)
whether
the
claim
of
juvenility is to be decided on the basis of
2007 Rules or 2004 Rules; and

(b) whether the orders passed and
impugned herein are in conformity with the
statutory mandate.

24. The first submission of Sri
Sharique Ahmed, counsel for the opposite
party that there is no distinction in between
the 2004 Rules or 2007 Rules in as much as
the procedure adopted for determination of
age prescribed is same under both the rules
is not worthy of acceptance for the sole
reasons that Rule 12 (3) (b) of the Rules
2007 specifically mandates the reliance on
documents specified under clauses (i), (ii)
and (iii) of Rule 3 (a) and in that order and
permits the resort to constitution of a
Medical Board only in the absence of any
of Clauses (i), (ii) and (iii) of Rule 3 (a) of
Rule 12, whereas in the Rules of 2004, the
resort to medical opinion by a medical
board is available only in the event of
absence of the documents mentioned in
Clause (1) to (3) of Rule 22 of Rules 2004.
The other distinction between the said two
Rules is that Rule 22 (5) in the order of
priority prescribes three documents, which
can be relied upon by the Board while
determining the claim of juvenility being
birth certificate given by a municipal
242 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, the date of birth certificate from
the school first attended and matriculation
and equivalent certificate, if available,
whereas in the Rules of 2007, the order of
documents, which can be relied upon by
the Board while deciding the claim of
juvenility are matriculation or equivalent
certificate and ''in absence' thereof , the
date of birth certificate from the school and
in ''in absence', the birth certificate given
by a corporation or a municipal authority.
Comparison of the two is indicated
hereinbelow:

Rule
22
(5) of the
Rules,
2004
Rule 12 (3) of the Rules,
2007
(5)
In
every case
concernin
g
a
juvenile or
child,
the
Board
shall either
obtain-

(i) a birth
certificate
given by a
corporatio
n
or
a
municipal
authority;
or

(ii) a date
of
birth
certificate
from
the
school first
attended;
or
(3) In every case concerning
a child or juvenile in conflict
with
law,
the
age
determination inquiry shall
be conducted by the court or
the Board or, as the case may
be, the Committee by seeking
evidence by obtaining-

(a) (i) the matriculation or
equivalent
certificates,
if
available; and in the absence
whereof;

(ii)
the
date
of
birth
certificate from the school
(other than a play school)
first attended; and in the
absence whereof;

(iii) the birth certificate given
by
a
corporation
or
a
municipal authority or a
panchayat;

(b) and only in the absence of

(iii)
matriculati
on
or
equivalent
certificates
,
if
available;
and

(iv) in the
absence of
(i) to (iii)
above, the
medical
opinion by
a
duly
constituted
Medical
Board,
subject to
a
margin
of
one
year,
in
deserving
cases
for
the
reasons to
be
recorded
by
such
Medical
Board,
regarding
his
age,
and, when
passing
orders
in
such case
shall, after
taking
into'
considerati
on
such
evidence
either (i), (ii) or (iii) of clause
(a)
above,
the
medical
opinion will be sought from a
duly
constituted
Medical
Board, which will declare the
age of the juvenile or child.
In case exact assessment of
the age cannot be done, the
Court or the Board or, as the
case may be, the Committee,
for the reasons to be recorded
by them, may, if considered
necessary, give benefit to the
child
or
juvenile
by
considering his/her age on
lower side within the margin
of one year.

and, while passing orders in
such case shall, after taking
into
consideration
such
evidence as may be available,
or the medical opinion, as the
case may be, record a finding
in respect of his age and
either
of
the
evidence
specified in any of the clauses
(a)(i), (ii), (iii) or in the
absence whereof, clause (b)
shall be the conclusive proof
of the age as regards such
child or the juvenile in
conflict with law.
7 All. Meghraj Sharma Vs. State of U.P. & Anr.
243
as may be
available
or
the
medical
opinion, as
the
case
may
be,
record
a
finding in
respect of
his age.

25. Thus, the distinction as is clear
from the 2004 Rules and 2007 Rules is that
resort to the certificates enumerated in
Clause (ii) and Clause (iii) of Rule 3 (a) of
the 2007 Rules and in that order can be
taken only ''in absence' of availability of
the document as specified in Rule 12 (3)
(a)(i).

26. The Full Bench of this Court had
the occasion to consider the applicability of
2004 Rules vis-a-vis applicability of 2007
Rules in view of the conflict and in terms
of the mandate of Section 68 of the JJ Act,
2000 the Full Bench, after dealing with the
scope of the said two rules and after
noticing the inconsistencies in between the
said two rules finally in Jai Prakash
Tiwari Vs. State of U.P. and another,
2016 (97) ACC 592 held as under:

"32. The procedure that has
been
provided
for
determining
the
question of juvenility under Central Rules
as to how the question of juvenility is to be
determined,
the
same
will
have
a
prevailing effect on U.P. Juvenile Justice
(Care and Protection of Children) Rules,
2004 as the State of Uttar Pradesh has not
framed any rule in tune with the Central
Rules referred to above and Central Rule
would apply for the inquiry to be held
until Rules in this regard are framed by
the State of Uttar Pradesh, in view of this,
answer to the question posed i.e. "whether
the U.P. Juvenile Justice (Care &
Protection of Children ) Rules 2004 need
be recast consequent upon addition of
section 7-A of the Juvenile Justice (Care
& Protection of Children) Act, 2000 (as
amended by Act No. 33 of 2006)" is 'Yes'
as the provisions of the U.P. Juvenile
Justice (Care & Protection of Children)
Rules 2004 on its own after introduction
of Section 7-A and keeping in view the
provisions of the Central Rules until and
unless it is not revamped and not at all
brought in consonance with the provisions
as are contained under the Juvenile
Justice (Care & Protection of Children)
Rules
2007,
the
same
cannot
be
subscribed and in view of this, same needs
to be modified.

33. The answer to the second
question i.e. "And in case it is found that
they need not be recast whether the U.P.
Juvenile Justice (Care & Protection of
Children )Rules 2004 framed by State
Government or The Juvenile Justice (Care
& Protection of Children) Rules 2007
framed by the Central Government shall
apply to the matter, in Uttar Pradesh" is
that it needs to be modified and till it is not
revamped, on the issue of juvenility being
raised, the answer to the said question will
have to be found on the parameters of the
provisions as are contained under The
Juvenile Justice (Care & Protection of
Children) Rules 2007 and the same shall
apply to the matter in the State of Uttar
Pradesh also."

27. In view of the specific decision of
the Full Bench as quoted above, the
argument of Sri Sharique Ahmed cannot be
244 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted and it is thus held that the only
recourse available before the Board was to
determine the question of juvenility on the
basis of 2007 Rules. This answers the first
question.

28. Coming to the second question as
to whether the order of the Juvenile Justice
Board dated 16.11.2018 is in conformity
with the 2007 Rules or not .

29. The claim of juvenility by the
revisionist was based upon the High School
Certificate indicating the date of birth of
the revisionist as 21.4.1996. Prior to date of
birth recorded in the certificate being
21.4.1996 a certificate was issued to the
revisionist indicating his date of birth as
21.4.1997 and as there were error in the
said date of birth on an application filed by
the revisionist, the date of birth was
corrected by the Education Board to
21.4.1996 which Certificate was relied
upon by the revisionist in support of his
claim of juvenility. The Juvenile Justice
Board observed that as the date of birth has
been corrected from 21.4.1997 to 21.4.1996
the same was not trustworthy and the Board
resorted to the procedure as laid down in
Rule 22 (4) of the JJ Rules 2004 for
determination of date of birth. Besides
expressing suspicion on account of change
of date of Birth, the Board has relied upon
the statement of the mother of the juvenile
to the effect that a birth certificate is
available in the records of the Nagar Nigam
whereas the report of police indicated that
no such birth certificate existed in the
records of Nagar Nigam. JJ Board further
placed reliance upon the certificate issued
by the NDMC to the effect that the address
of the parents of the revisionist was forged.
JJ Board further found that the statement of
the parents of juvenile that the juvenile was
born in Delhi was found to be untrue. After
having cast doubt on the High School
Certificate on the basis of the evidences, as
discussed above, the Juvenile Justice Board
further disbelieved the statement with
regard to the primary education on the basis
of the statement made by the mother and
father of the juvenile. The JJ Board
although considered the certificate on
record issued by the Uttar Pradesh
Education Board to the effect that the
revisionist Meghraj Sharma, who appeared
in the High School Examination in the year
2012 having Roll No. 1625284 and his date
of birth was corrected from 21.4.1997 to
21.4.1996 did not rely upon the same, thus,
having cast a doubt on the grounds as
extracted above, the Board taking recourse
to 2004 Rules proceeded to determine the
age of the revisionist as 19 years, 8 months
and 25 days as on the date of the incident
on the basis of the medical examination
alone and consequently the claim of
juvenility stood rejected.

30. Having considered the reasoning
of the Board as extracted above, I am of the
firm view that the reasoning adopted in
disbelieving the High School Certificate of
the revisionist was wholly arbitrary in as
much as the revisionist had got his date of
birth in the certificate corrected from
21.4.1997 to 21.4.1996 by adopting the
procedure established for change of date of
birth and duly ordered by the Deputy
Secretary
of
the
Education
Board
permitting the correction of error in
recording the date of birth in the High
School Certificate. The JJ Board erred in
disbelieving the certificate despite there
being nothing on record to indicate that the
certificate issued by the Board indicating
the date of birth as 21.4.1996 was a forged
or fabricated document and in any case
change of date of birth from 21.4.1997 to
21.4.1996, that too, much prior to the date
7 All. Meghraj Sharma Vs. State of U.P. & Anr.
245
of the incident could not have enured any
benefit to the revisionist as the age of the
juvenile was actually increased. Once there
is nothing on record to the effect that
certificate issued by the Board was either
forged or fabricated document, it could not
have been disbelieved by the JJ Board,
moreso, on the basis of the reasoning given
by the JJ Board that the date of birth in the
certificate was got changed from 21.4.1997
to 21.4.1996. Once the High School
Certificate was on record, the resort to
report of the Medical Board was not
available to the Board in view of the
specific mandate contained in Rule 12 (3)
of the 2007 Rules. The appellate authority
committed the same error while holding the
order of the Board and resorted to the
report of the Medical Board ignoring the
High School Certificate holding the same
to be suspicious for the reasons as recorded
by the JJ Board.

31. The counsel for the parties have
relied upon the judgments in which the first
being Full Bench judgment of this Court in
the case of Jai Prakash Tiwari Vs. State
of U.P., 2016 (97) ACC 592, which I have
already
discussed
hereinabove,
which
clearly laid down that in case of conflict the
determination is to be done in accordance
with the 2007 Rules. Being a judgment by
Full Bench of this Court, I am bound by the
said judgment and thus, I have no
hesitation
in
holding
that
resort
to
determination under 2004 Rules was not
available
to
the
Board
and
the
determination ought to have been done
under the 2007 Rules alone.

32. The next judgment relied upon by
the counsel for the revisionist is the
judgment of the apex court in Ashwani
Kumar Saxena Vs. State of M.P.,
2013 SCC (Cri), 2012 9 SCC 570 wherein
the Supreme Court after considering the
scope of Section 7A of the 2000 Act and
2007 Rules specifically held as under:

"31.
We
also
remind
all
Courts/Juvenile Justice Board and the
Committees functioning under the Act
that a duty is cast on them to seek
evidence by obtaining the certificate etc.
mentioned in Rule 12 (3) (a) (i) to (iii).
The courts in such situations act as a
parens patriae because they have a kind of
guardianship over minors who from their
legal disability stand in need of protection.

32. "Age determination inquiry"
contemplated under section 7A of the Act
read with Rule 12 of the 2007 Rules
enables the court to seek evidence and in
that process, the court can obtain the
matriculation or equivalent certificates, if
available. Only in the absence of any
matriculation or equivalent certificates,
the court need obtain the date of birth
certificate from the school first attended
other than a play school. Only in the
absence of matriculation or equivalent
certificate or the date of birth certificate
from the school first attended, the court
need obtain the birth certificate given by a
corporation or a municipal authority or a
panchayat (not an affidavit but certificates
or documents). The question of obtaining
medical opinion from a duly constituted
Medical Board arises only if the above
mentioned documents are unavailable. In
case exact assessment of the age cannot be
done, then the court, for reasons to be
recorded, may, if considered necessary,
give the benefit to the child or juvenile by
considering his or her age on lower side
within the margin of one year.
246 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Once the court, following the
above mentioned procedures, passes an
order; that order shall be the conclusive
proof of the age as regards such child or
juvenile in conflict with law. It has been
made clear in subsection (5) or Rule 12
that no further inquiry shall be conducted
by the court or the Board after examining
and obtaining the certificate or any other
documentary proof after referring to subrule (3) of the Rule 12. Further, Section
49 of the Juvenile Justice Act also draws a
presumption of the age of the Juvenility
on its determination.

34. Age determination inquiry
contemplated under the JJ Act and Rules
has nothing to do with an enquiry under
other legislations, like entry in service,
retirement, promotion etc. There may be
situations where the entry made in the
matriculation or equivalent certificates,
date of birth certificate from the school
first attended and even the birth certificate
given by a Corporation or a Municipal
Authority or a Panchayat may not be
correct. But Court, Juvenile Justice Board
or a Committee functioning under the
Juvenile Justice Act is not expected to
conduct such a roving enquiry and to go
behind those certificates to examine the
correctness of those documents, kept
during the normal course of business.
Only in cases where those documents or
certificates are found to be fabricated or
manipulated, the Court, the Juvenile
Justice Board or the Committee need to go
for medical report for age determination."

33. The pronouncement of the
Supreme Court is clear that the proceedings
prescribed in 2007 Rules have to be
followed strictly and only in the absence of
the document specified in rule 12 (3)(a) can
recourse be taken to the other methods
prescribed.

34. Counsel for the Opposite Party,
on the other hand, has placed reliance upon
the judgment of the Supreme Court in the
case of Parag Bhati (Juvenile) Through
Legal Guardian Mother Rajni Bhati Vs.
State of Uttar Pradesh and another,
(2016) 12 Supreme Court Cases 744
wherein the Supreme Court considered the
scope of Rule of 12 of 2007 Rules and
specifically held as under:

"36. It is settled position of law
that if the matriculation or equivalent
certificates are available and there is no
other material to prove the correctness,
the date of birth mentioned in the
matriculation certificate has to be treated
as a conclusive proof of the date of birth
of the accused. However, if there is any
doubt or a contradictory stand is being
taken by the accused which raises a doubt
on the correctness of the date of birth then
as laid down by this Court in Abuzar
Hossain
(supra),
an
enquiry
for
determination of the age of the accused is
permissible which has been done in the
present case."

35. In the above judgment, the apex
court holding that only if there is any doubt
with regard to the the certificates as
enumerated within Rule 12 (3)(a), the
resort can be taken for determination of the
age in the manner as prescribed by the
Apex Court in the judgment in the case of
Abuzar Hossain alias Gulam Hossain Vs.
State of West, (2012) 10 SCC 489. The
Supreme Court summarised the position as
under:

"36. Now, we summarise the
position which is as under:

(i) A claim of juvenility may be
raised at any stage even after final
disposal of the case. It may be raised for
7 All. Meghraj Sharma Vs. State of U.P. & Anr.
247
the first time before this Court as well
after final disposal of the case. The delay
in raising the claim of juvenility cannot be
a ground for rejection of such claim. The
claim of juvenility can be raised in appeal
even if not pressed before the trial court
and can be raised for the first time before
this Court though not pressed before the
trial court and in appeal court.

(ii) For making a claim with
regard to juvenility after conviction, the
claimant must produce some material
which may prima facie satisfy the court
that an inquiry into the claim of juvenility
is necessary. Initial burden has to be
discharged by the person who claims
juvenility.

(iii) As to what materials would
prima facie satisfy the court and/or are
sufficient for discharging the initial
burden cannot be catalogued nor can it be
laid down as to what weight should be
given to a specific piece of evidence which
may be sufficient to raise presumption of
juvenility but the documents referred to in
Rule 12(3)(a)(i) to (iii) shall definitely be
sufficient for prima facie satisfaction of
the court about the age of the delinquent
necessitating further enquiry under Rule
12. The statement recorded underSection
313of the Code is too tentative and may
not by itself be sufficient ordinarily to
justify or reject the claim of juvenility. The
credibility and/or acceptability of the
documents
like
the
school
leaving
certificate or the voters' list, etc.